United States v. Lambert

• Decision Date: 03 February 1978
• Docket Number: Crim. No. N-77-98.
• Citation: 446 F. Supp. 890
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America, Plaintiff, v. Paul A. LAMBERT, Defendant.

446 F. Supp. 890

UNITED STATES of America, Plaintiff, v. Paul A. LAMBERT, Defendant.

Crim. No. N-77-98.

United States District Court, D. Connecticut.

February 3, 1978.

COPYRIGHT MATERIAL OMITTED

Richard N. Blumenthal, U. S. Atty. for the District of Conn., New Haven, Conn. Asst. U. S. Attys., Michael J. Hartmere and Lawrence M. Herrmann, for plaintiff.

Peter I. J. Davis and Charles Norman Shaffer, Rockville, Md., for defendant.

RULING ON MOTION TO DISMISS

DALY, District Judge.

Defendants have been charged in an indictment with violating 18 U.S.C. § 641 (1970),¹ a statute which establishes sanctions upon any person who "embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States . . .." The indictment alleges that the defendants sold information derived from a computer within the Drug Enforcement Administration, Washington, D. C. The information allegedly included the identity of possible informants and the status of government investigations into illegal drug traffic. Because only information rather than documents was transferred, defendant Lambert claims that § 641 is inapplicable. Furthermore, if § 641 is found to apply, the defendant argues that the statute is unconstitutionally vague and overbroad.

SECTION 641: INFORMATION AS A "THING OF VALUE"

Defendant's specific contention is that the phrase "any record, voucher, money, or thing of value of the United States" encompasses only tangible objects, e. g., a document embodying information rather than the information itself. Defendants point to the legislative history for support. The section appeared originally in the 1948 Revision, which recodified but did not alter the substantive offenses in the U. S. Code. Therefore, the Court must first look to the section's legislative history prior to the 1948 revision.

Section 641 is a condensation of at least four sections in the 1940 Code, 18 U.S.C. §§ 82, 87, 100, 101. Section 82 referred to the larceny of "any property" of the government, or "any property which has been or is being made, manufactured, or constructed under contract." Section 87 referred to the theft of "any ordinance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States." Clearly, these sections refer to tangible goods. Sections 100 and 101, however, both referred to "money, property, record, voucher, or valuable thing whatever, of the money, goods, chattels, records, or property of the United States." Thus the mention of a "record . . . or thing of value" in § 641 can be traced to these two broadly worded sections, the language of which contrasts sharply with the more concrete references of §§ 82 and 87. Sections 100 and 101, in turn, descended from two sections of the 1909 codification, Act of March 4, 1909, ch. 321, §§ 47, 48, 35 Stat. 1097, 1098. The relevant phrasing in these latter sections is identical to the wording of the 1940 Code, as is the language of their predecessors, Act of March 3, 1875, ch. 144, §§ 1, 2, 18 Stat. 479.

Because the relevant statutory language has traveled through more than a century without substantive change, there is little recent legislative history to illuminate Congress' intent. In addition, the Congressional debates of 1875 fail to delineate the scope of the statutory language. Defendants therefore argue that the use of the word "record" in statutes contemporaneous with or prior to the original statute of 1875 should be examined. The defendants point to statutes dealing with the theft of court records, §§ 5394, 5403, 5408, (Rev.Stat. 1875); Act of February 26, 1853, § 4, 10 Stat. 170; Act of 1790 § 15, 1 Stat. 115, as proof that Congress meant to refer only to government documents, rather than to mere information as well when legislating in 1875. This "matrix of judicial meaning", as the defendant calls it, is far too selective, and fails to account for the open-ended phrase "thing of value" in § 641 and its predecessors. This phrase evidences Congress' intent to cover a wide variety of conduct. However, the Court does not consider the legislative history conclusive as to the applicability of § 641 to the specific conduct alleged in this case. Further guidance must be sought from judicial interpretations of that section.

It has been contended that the transfer of mere information does not constitute a violation of § 641, because traditional tort law does not encompass such conduct. A similar conclusion was reached by the Ninth Circuit in the case of Chappell v. United States, 270 F.2d 274 (9th Cir. 1959), the continuing validity of which is in doubt.² In that decision, the Court of Appeals dismissed part of an indictment because the defendant's conduct did not constitute conversion under § 641. The defendant, a Master Sergeant in the U. S. Air Force, utilized an airman's labor while on duty to paint several apartments owned by the defendant. In the court's view, § 641 was merely a codification of common-law offenses, and under tort law conversion could only be performed upon tangible goods. As a result, the court termed the application of § 641 to the misappropriation of an employee's labor a "revolutionary concept", and invoked the need for strict construction of criminal statutes in finding § 641 inapplicable to the defendant's conduct. Id. at 278.³

This court sees no reason to restrict the meaning of § 641 to its common-law origins. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court interpreted § 641 as requiring a criminal intent, although the statute as worded did not explicitly refer to such a mental state. The respondents had argued that to "knowingly convert" did not require the same mental state as did the other common-law offenses listed in the statute. The Court rejected such a close equivalence between the statutory provision and earlier case law. In discussing the history of § 641, the Court concluded that the section applied to "acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions." Id. at 269, n.28, 72 S.Ct. at 253. The relevant statutory predecessor to § 641 was similarly described by the Fifth Circuit in Crabb v. Zerbst, 99 F.2d 562, 565 (5th Cir. 1938), as covering "larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common-law . . . ." In particular, the Court of Appeals was concerned with the difficult relationship between common-law crimes, whose borders were indistinct, and the statutory language. Between the common-law offenses of embezzlement and larceny, the court wrote, "lies a gap which has grown wider and wider as the multifarious activities of the central government have spread and increased." Id. To fill this gap, Congress included the word "steal," a word "having no common law definition to restrict its meaning as an offense, and commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership . . . ." Id. A more flexible interpretation of § 641 than that found in Chappell is therefore appropriate.

In United States v. Bottone, 365 F.2d 389 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966), the Court of Appeals interpreted a statute prohibiting the interstate transportation of "any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud." 18 U.S.C. § 2314. The defendants had removed from corporate offices, inter alia, documents detailing a valuable organic chemical process. The documents were copied at another location and notes were made. Then the originals were returned. Only the copies and notes travelled through interstate commerce. The issue was whether the copies and notes were "goods" within the meaning of the statute. The court concluded that the copies and notes were included within the definition of "goods", reasoning that "where the physical form of the stolen goods is secondary in every respect to the matter recorded in them, the transformation of the information in the stolen papers into a tangible object never possessed by the original owner should be deemed immaterial."⁴ Id. at 393-94.

Other courts have noted with approval the Bottone court's emphasis on the content of government documents, rather than their form. The district court in United States v. Rosner, 352 F.Supp. 915 (S.D.N.Y.1972), contrasted § 641 to 18 U.S.C. § 2071. The defendants were charged with removing certain papers, including Grand Jury minutes, from the files of the U. S. Attorney's Office in the Southern District of New York. The Government argued that it had been deprived of the full benefit of the temporarily removed documents in that the exclusivity of possession would have helped the prosecutor. United States v. Bottone, supra, was relied upon to overcome the fact that the documents themselves were returned unscathed after copies were made. Nevertheless, the court concluded that § 2071 did not apply because the documents were neither impaired nor destroyed. In dismissing the count brought under § 2071, the court noted that the Government would likely have met with greater success had the defendants been indicted for violating § 641, under which statute the transmission of the information contained in the documents might be considered as larcenous as the taking of the documents themselves. Id. at 922.

The most recent source of guidance as to the proper scope of § 641 is United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976). In that case, the defendants were prosecuted for periodically copying FBI investigative...